The public's right to know
THE BELIEF that journalists should not reveal the identities of people who give them information in confidence is not fundamentally about the rights or privileges of the media. It is about the rights of citizens in an open and democratic society. Democracy is fuelled by information. If they are to hold those in power to account, citizens must first know what they are doing. It is crucial, therefore, that people of conscience should be able to reveal unpleasant facts about important matters without being exposed and punished. It is equally essential that the general public should be free to receive that information in a timely manner, so that it can decide for itself what its implications may be.
This is a view which has been consistently upheld by the European Court of Human Rights, but not, until yesterday, by Irish law. It was in this ambivalent context that The Irish Timesreceived, in September 2006, information from an anonymous source that the then taoiseach, Bertie Ahern, had accepted substantial payments from private individuals while he was minister for finance. This was, as the Supreme Court acknowledged yesterday, “a matter of public interest which a newspaper would, in the ordinary way, be entitled to print”. More importantly, it was a matter which the public was entitled to know.
The Irish Timeswas aware from the beginning that the ultimate source of the information was the inquiries of the Mahon tribunal. We fully understood the tribunal’s need for confidentiality, and we did not lightly make a decision that this need was outweighed by the imperative of disclosure.
We were aware, however, that there was no certainty at that stage that these facts would ever be disclosed in public. We believed that the issue was not one of our right to publish, but of our duty to do so. The alternative scenario that we would choose to suppress important information about the conduct of the taoiseach of the day could not be contemplated.
Therefore, it is with relief as well as satisfaction that we welcome yesterday’s Supreme Court decision to grant the appeal by The Irish Timesagainst the High Court’s ruling that the editor and public affairs correspondent of the paper be forced to answer questions before the tribunal as to the source of the leaked material. Had the judgment gone the other way, Ireland would have gone against the grain of European law and endorsed an extraordinarily narrow view of the public’s right to be informed.
It is particularly welcome that Mr Justice Nial Fennelly relied very heavily on the precedents of the European Court and in doing so effectively adopted that court’s judgments into Irish law. Unlike the position in the US, the European precedents are not concerned primarily with the rights of journalists or sources. They ask, as yesterday’s ruling put it, “is there a pressing social need for the imposition of the restriction?”.
Contained in that question are two vital considerations – the needs of a democratic society and the belief that information should not be suppressed unless there is an overwhelming public interest in doing so. The full practical implications of the judgment may still have to be teased out and no right can ever be unqualified. But the criteria set out out in the judgment are principles rooted in the assumption that information is the blood supply of the body politic. From that perspective, yesterday was a good day for Irish journalism which exists to serve the public’s right to know.